The court ruled that the evidence did not sufficiently establish the applicant's role as an abettor in the crime, leading to the suspension of her sentence during the appeal process.

(PER : HONOURABLE MR. JUSTICE ILESH J. VORA) Rule. advocates appearing for the respective respondents waive service of notice of admission for and on behalf of the respective respondents.

1.Heard learned counsel Mr. Gajendra Baghel for the applicant and Ms. Nilam Chauhan for the private respondent and Ms. S.S. Pathak, learned APP for the respondent-State.

2.By way of this application under Section 389 (1) of the Code of Criminal Procedure , the applicant Parvatiben Ashwani @ Ronak Triveni Gupta (Vaniya) seeks suspension of sentence awarded to him by the Sessions Court concerned for the offence punishable under Sections 363, 366 , 376(2)(j)(n) of the Indian Penal Code (Old) and Sections 3, 4, 5(l), 6, 12, 16 and 17 of the POCSO Act.

3.The present appeal and the application for suspension of sentence arise from the judgment dated 25.04.2021 and order of sentence passed in Special (POCSO) Case No.58 of 2021, whereby, the applicant herein was convicted and sentenced as under:

(i)Section 363 of IPC (Old): 7 years R.I. and fine of Rs.1000/- and in default thereof, further imprisonment for 1 year;

(ii)Section 366 of the IPC (Old):10 years R.I. and fine of Rs.1000/- and in default thereof, further imprisonment for 1 year;

(iii)Sections 376(2)(j)(n) of the IPC (Old) :10 years R.I. and fine of Rs.5,000/- and in default thereof, further imprisonment of 2 years;

(iv)Section 3, 4, 5(l), 6, 12, 16 and 17 of POCSO Act: no independent sentence has been awarded.

4.Mr. Gajendra Baghel, learned counsel appearing for the applicant-accused herein while praying for suspension of sentence contended that, the conviction and sentence awarded by the trial Court is not sustainable in eye of law.

That, prosecution miserably failed to prove the age of the victim. That, the findings qua the applicant for the offence of rape are contrary to law as so far as the applicant is concerned, she cannot be held abettor for the offence of rape. That, the theory projected by the victim that the applicant being a wife of principal accused intentionally aided the accused in commission of the offence of rape, abduction and kidnapping are highly improbable and there is major contradiction found in the evidence of the victim and her mother and therefore, the conviction and sentence recorded by the trial court is not sustainable.

That, the applicant has completed 2 years of the jail term and therefore, the applicant being a lady accused and the as there is no possibility of the appeal being heard in near future, the case may be considered to suspend the sentence.

5.On the other hand, Mr. L.B. Dabhi, learned Additional Public Prosecutor and Ms. Neelam Chauhan have vehemently opposed the prayer of suspension of sentence and contended that, granting stay on the sentence should not be the rule but an exception and in rare cases depending upon the facts of the case, the court may consider. Therefore, considering the evidence of the victim which has got support from the deposition of the mother, the role attributed to the present applicant as an abettor, has been established and proved and in that view of the matter, learned trial court has not committed any error either on facts or on law on relying on the evidence of the victim.

6.The issue arises as to whether the applicant has made out a case for suspension of sentence under Section 389(1) Cr.P.C? 7.Having considered the peculiar facts and circumstances of the present case and submissions advanced by learned counsel for the respective parties, we are persuaded to exercise discretion to suspend the substantial sentence on the following grounds:

(i)We are conscious about the settled position of law that when the accused is convicted, the presumption of innocence and bail is a rule and jail is exception will not be available to the appellant-convict. Keeping in mind the said principle and considering the peculiar facts and circumstances of the present case, we have noticed that, the victim left her parental home without informing anybo